UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TIBEBE F. SAMUEL, Plaintiff v. Civil Action No. 17-2539 (CKK) WELLS FARGO & COMPANY, et al., Defendants

MEMORANDUM OPINION (April 27, 2018)

At the center of this lawsuit is the alleged decision of Defendants Wells Fargo &

Company and Wells Fargo Bank, N.A. (collectively, “Wells Fargo”) to deny a Home Affordable

Modification Program (“HAMP”) application filed by Genet Damtie in 2010. Given its subject

matter, one might reasonably expect that Ms. Damtie would be a party to this case. She is not.

Instead, this case has been brought by Tibebe F. Samuel, an individual who allegedly represented

Ms. Damtie in her dealings with Wells Fargo. Ms. Damtie’s HAMP application was never

granted. She ultimately fired Plaintiff in early 2017. Her home was foreclosed later that year.

Plaintiff filed suit shortly thereafter.

Plaintiff, who does not purport to represent Ms. Damtie in this lawsuit, contends that

Wells Fargo treated him unfairly during Ms. Damtie’s HAMP application process. Plaintiff’s

currently-operative Amended Complaint is filled with generalized allegations of broken

promises, deception and defamation. It is not a model of clarity or specificity. Defendants have

filed a [12] Motion to Dismiss the Amended Complaint. Upon consideration of the pleadings, 1

1 The Court’s consideration has focused on the following documents: • Defs.’ Mem. in Support of Mot. to Dismiss Am. Compl., ECF No. 12-2 (“Defs.’ Mot.”);

1 the relevant legal authorities, and the record as it currently stands, the Court GRANTS-IN-PART

and DENIES-IN-PART that motion. All of the claims that the Court can discern in Plaintiff’s

Amended Complaint are dismissed. For many of those claims, the statute of limitations has run.

For others, Plaintiff has failed to plead essential elements. And for still others, there is simply no

private cause of action available to Plaintiff.

However, for the first time in his Opposition to Defendants’ Motion to Dismiss, Plaintiff

has raised defamation and interference with business relationship claims based on a statement

that Wells Fargo allegedly made to Ms. Damtie about Plaintiff in March 2017. Because Plaintiff

proceeds pro se, the Court has considered these claims despite the fact that they were absent

from his Amended Complaint. Unlike Plaintiff’s other defamation and interference claims, these

claims do not appear to be time-barred or otherwise subject to dismissal on the pleadings on the

current record. Plaintiff’s lawsuit will be allowed to continue only so that he can assert claims

based on the March 2017 statement. However, the Court will order Plaintiff to file a Second

Amended Complaint that specifically asserts these claims so that there is an operative complaint

in this case that sets forth the claims that are actually at issue going forward. This new pleading

shall also omit the claims that the Court dismisses with prejudice, as discussed in more detail

below.

I. BACKGROUND

For the purposes of the motion before the Court, the Court accepts as true the well-

pleaded allegations in Plaintiff’s Amended Complaint. The Court does “not accept as true,

• Pl.’s Opp’n to Defs.’ Mot. to Dismiss, ECF No. 14 (“Pl.’s Opp’n); and • Defs.’ Reply in Support of Mot. to Dismiss Am. Compl., ECF No. 15 (“Defs.’ Reply”). In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).

2 however, the plaintiff’s legal conclusions or inferences that are unsupported by the facts

alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S.,

(D.C. Cir. 2014).

In their reply brief, Defendants argue that the Court may not consider exhibits and factual

assertions raised for the first time in Plaintiff’s Opposition to Defendants’ Motion to Dismiss

because “it is well-settled that a plaintiff cannot seek to amend his pleadings in an opposition to a

motion to dismiss.” Defs.’ Reply at 3. Although this principle is indeed well-settled in cases

where the plaintiff is represented by counsel, it does not apply in the same fashion in cases where

the plaintiff proceeds pro se. Because Plaintiff proceeds in this matter pro se, when determining

whether Plaintiff can state a plausible claim for relief the Court must consider his complaint in

light of all of his filings, including those submitted in response to Defendants’ Motion to

Dismiss. See Brown v. Whole Foods Mkt. Grp., Inc.,

(D.C. Cir. 2015) (“a

district court errs in failing to consider a pro se litigant’s complaint ‘in light of’ all filings,

including filings responsive to a motion to dismiss”) (quoting Richardson v. United States,

(D.C. Cir. 1999)); Fillmore v. AT & T Mobility Servs. LLC,

(D.D.C. 2015) (“the Court, as it must in a case brought by a pro se plaintiff, considers the facts

as alleged in both the Complaint and Plaintiff’s Opposition to Defendant's Motion to Dismiss.”).

Accordingly, the Court has considered Plaintiff’s claims in light of all of his filings, including his

Opposition to Defendants’ Motion to Dismiss and the attachments thereto.

Plaintiff alleges that Wells Fargo serviced a mortgage on a Washington, D.C. property for

which non-party Ms. Genet Damtie was the borrower. Am. Compl., ECF No. 9, ¶¶ 2, 30. Ms.

Damtie allegedly retained Plaintiff in March 2010 “to handle and complete a Home Loan

Modification Program (HAMP) Application” for her. Id. ¶¶ 2-3, 30. HAMP provides incentives

for mortgage servicers to modify eligible first lien mortgages so that the payments of

3 homeowners who are in default or risk of default can be reduced to affordable levels. Id. ¶¶ 18-

19. Plaintiff is a self-described “loan modification consultant” who helps home owners navigate

the HAMP application process. Id. ¶ 27. As is required by law, Plaintiff was not to be paid by

Ms. Damtie unless and until her HAMP application process was completed. Id. ¶¶ 29, 31. 2

An “Authorization Letter” was sent to Wells Fargo notifying it of Plaintiff’s retention by

Ms. Damtie, and Wells Fargo allegedly responded to the letter indicating that it agreed to work

with Plaintiff as Ms. Damtie’s agent. Id. ¶¶ 3, 32. 3 Wells Fargo allegedly indicated that it would

make a decision on Ms. Damtie’s HAMP application within 45-60 days (assuming that all

required information had been provided). Id. ¶¶ 4, 32. However, according to Plaintiff, the

process ended up taking more than seven years. Id. During this period Plaintiff allegedly

completed numerous tasks on behalf of Ms. Damtie (e.g., “faxing and mailing documents” and

“letter writing”). Id. ¶ 5. Plaintiff continued to work as Ms. Damtie’s agent until April 2017

when, frustrated with the delay, Ms. Damtie terminated his representation and hired a new

representative. Id. ¶ 4. 4 In June of that year her home was foreclosed. Id.

Plaintiff alleges that Wells Fargo lied when it indicated in 2010 that Ms. Damtie’s

application would be processed in 45-60 days. Id. ¶ 6. In fact, according to Plaintiff, Wells

Fargo “never had the intention of modifying the loan at all.” Id. ¶¶ 6, 46-47. Instead, Wells

2 Plaintiff makes clear in his Amended Complaint that he is bringing this case “on his own behalf.” Id. ¶ 9. 3 In his Opposition to Defendants’ Motion to Dismiss, Plaintiff indicates that multiple such letters were sent and acknowledged by Wells Fargo. See Pl.’s Opp’n at 2, Exs. A & B. 4 Plaintiff has attached to his Opposition to Defendants’ Motion to Dismiss two letters that Ms. Damtie allegedly sent to him through which she terminated his representation due to her frustration with Plaintiff’s failure to secure a loan modification for her from Wells Fargo. See Pl.’s Opp’n, Exs. E & F.

4 Fargo’s intention was allegedly “to accumulate interest in the mortgage,” “prolong the HAMP

process” and eventually foreclose on the home when profitable to Wells Fargo. Id. ¶ 6.

In a section of his Amended Complaint entitled “Defamation of Character and

Interference in Plaintiff’s Business,” Plaintiff alleges that Wells Fargo made certain false

statements about Plaintiff to Ms. Damtie and others. Id. ¶¶ 41-45. In his Amended Complaint,

Plaintiff alleges two specific instances when such false statements were made. First, Plaintiff

alleges that “[i]n the Superior Court of the District of Columbia in July 2016 during a hearing,

the defendant’s representative made a false statement regarding the Plaintiff.” Id. ¶ 42. Second,

Plaintiff alleges that “[i]n August 2016, a complaint was lodged by the borrower against the

Defendant to Consumer Financial Protection Bureau (CFPB)” and “although the Defendant and

the Plaintiff discussed . . . the complaint,” Defendants “provided false information to the CFPB

stating that the Defendant was ‘unable to reach the Plaintiff’ in order to address the issues in the

complaint.” Id. ¶ 43. Finally, although not alleged in his Amended Complaint, Plaintiff has

raised a third allegedly defamatory statement in his Opposition to Defendants’ Motion to

Dismiss. According to a letter allegedly sent by Ms. Damtie to Plaintiff, a Wells Fargo customer

service representative told Ms. Damtie on March 28, 2017 that her HAMP application had not

been granted in part because Wells Fargo had been unable to get in touch with Plaintiff. See

Pl.’s Opp’n, Ex. E.

Defendants have moved to dismiss the Amended Complaint under Federal Rule of Civil

Procedure 12(b)(6). That motion has been fully briefed and is now ripe for resolution.

II. LEGAL STANDARD

Under Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that it

“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A]

5 complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). Rather, a complaint must contain sufficient factual allegations that, if

accepted as true, “state a claim to relief that is plausible on its face.” Twombly,

.

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

.

III. DISCUSSION

A. Conclusory Allegations of Wrongdoing

At the outset, the Court notes that Plaintiff’s Amended Complaint is littered with

generalized, conclusory allegations of wrongdoing that are insufficient to state a claim against

Defendants. See, e.g., Am. Compl. ¶ 1 (alleging that Defendants engaged in “misconduct,

deceptive business practices, interference in business relations, and defamation of character”); id.

¶ 4 (alleging that the HAMP application process was delayed due to “deceptive practices and

dishonesty by the defendant”); id. ¶ 6 (alleging that Defendants “lied,” “made deceptive and

dishonest statements,” and provided information that was “harmful”); id. ¶ 35 (“Defendants have

engaged in a pattern of unfair and deceptive practices,” “provid[ed] false information” and

“fail[ed] to deal with the Plaintiff in good faith and engag[ed] in deceptive practices”); id. ¶ 39

(“Defendant violated federal laws, violated the District of Columbia laws, program requirements

and contractual requirements governing loss mitigation”); id. ¶ 40 (alleging that Defendants have

“engaged in a pattern of unfair and deceptive practices”); id. ¶ 41 (alleging that Defendants failed

“to respond to borrower and Plaintiff’s inquiries” and “provid[ed] false or misleading

information” on certain issues); id. ¶ 44 (alleging “improper, unlawful, deceptive, and unethical

6 conduct of the Defendant”); id. ¶ 50 (alleging that “Defendant abused its authority and abused

the HAMP process; the Defendant violated duties owed to the Plaintiff; the Defendant violated

Federal and the law of the District of Columbia; and the defendant’s unlawful, deceptive,

unethical, and fraudulent conduct has resulted in injury to the Plaintiff in this case”). 5

These conclusory, “naked assertions” of wrongdoing do not aid Plaintiff’s lawsuit in

surviving a motion to dismiss. See Iqbal,

. Cursory, unexplained allegations of

misconduct do not satisfy the pleading standards of Federal Rule 8 and, to the extent Plaintiff is

alleging fraud, they certainly do not satisfy the heightened pleading standards of Federal Rule

9(b). Below, the Court addresses whether the specific allegations in this case are sufficient to

state plausible claims for relief pursuant to the causes of action Plaintiff appears to be asserting.

B. Contract Claims

To the extent Plaintiff intends to assert contract claims, those claims are dismissed with

prejudice. The Court can only discern one potential agreement from Plaintiff’s pleadings that

could, theoretically, support a contract claim between Plaintiff and Defendants: Defendants’

alleged “promise” in 2010 to Plaintiff that they would process Ms. Damtie’s HAMP application

within 45-60 days (assuming all required information had been provided). 6 Assuming for the

purposes of Defendants’ Motion to Dismiss that Plaintiff could have standing to enforce this

promise, and that this promise could serve as the basis for an actionable contract claim,

Plaintiff’s claim still must be dismissed with prejudice because the statute of limitations has run.

5 This sort of allegation makes up a large portion of Plaintiff’s Opposition to Defendants’ Motion to Dismiss as well. See, e.g., Pl.’s Opp’n at 3-5. 6 Plaintiff makes other extremely vague, broad assertions of “promises,” but none are pled with sufficient particularity to state a claim. Courts regularly dismiss vague or imprecise contract claims. See Burnett v. Am. Fed’n of Gov’t Employees,

(D.D.C. 2015) (citing cases).

7 “The statute of limitations in the District of Columbia for bringing a breach of contract claim is

three years,” and it begins to run at the time of the alleged breach. LoPiccolo v. Am. Univ.,

(D.D.C. 2012) (citing

(7)). A breach of contract claim

premised on Defendants’ failure to comply with the 45-60 day timeline promise would have

accrued when Defendants (allegedly) failed to make a decision on Ms. Damtie’s HAMP

application within that timeframe. This was sometime in 2010, far more than three years before

this case was filed in November 2017. 7

In addition, it appears that Plaintiff intends to assert a claim for breach of contract based,

at least in part, on the implied duty of good faith and fair dealing. See Am. Compl. ¶¶ 46-51

(section of allegations under heading “Breach of Implied Covenant of Good Faith and Fair

Dealing Asserted by Plaintiff”). This claim is fundamentally flawed. It is true that in the District

of Columbia, “‘all contracts contain an implied duty of good faith and fair dealing.’” Allworth v.

Howard Univ.,

(D.C. 2006) (quoting Paul v. Howard Univ.,

(D.C. 2000)). But, besides the alleged promise to process Ms. Damtie’s application in 45-60

days (which, as described above, is not actionable), Plaintiff does not identify a contract between

himself and Defendants to which such an implied duty might attach. The actual contractual

relationships relating to the mortgage in this case involved Ms. Damtie, not Plaintiff. 8 Without a

7 Plaintiff states in his Opposition to Defendants’ Motion to Dismiss that his contract claims are timely because he submitted additional HAMP applications in 2016, see Pl.’s Opp’n at 9, but this argument misses the mark. Plaintiff may have submitted additional HAMP materials in 2016, but he only alleges that Defendants promised him to process Ms. Damtie’s application in 45-60 days in 2010. 8 Although somewhat difficult to square with the remainder of Plaintiff’s allegations, Plaintiff indicates in his Opposition to Defendants’ Motion to Dismiss that he is not attempting through this lawsuit to challenge Defendants’ decision to deny Ms. Damtie’s HAMP application. Pl.’s Opp’n at 12. Had Plaintiff asserted such a claim, it would be subject to dismissal because Plaintiff does not have standing to sue Defendants for their alleged failure to grant Ms. Damtie a HAMP loan modification.

8 contractual relationship, there can be no claim for breach of the implied duty of good faith and

fair dealing. See Koker v. Aurora Loan Servicing, LLC,

(D.D.C. 2013)

(“the implied duty of good faith and fair dealing only applies in the context of a party’s

contractual performance”). And, even if Plaintiff were a party to the mortgage contracts at issue

in this case, considering but declining to grant a loan modification to a defaulting borrower does

not itself violate the implied duty of good faith and fair dealing. See In re Coleman, No. 06-

00254,

, at *7 (Bankr. D.D.C. May 11, 2009) (with respect to good faith and

fair dealing claim, holding that defendant home loan company “was not obligated to modify

[plaintiff’s] Mortgage or otherwise engage in workout agreements that would give [plaintiff] the

opportunity to become current on his payments.”). For these reasons, Plaintiff cannot state a

claim against Defendants for breach of the implied duty of good faith and fair dealing. All of

Plaintiff’s contract claims are therefore dismissed with prejudice. 9

C. Fraud Claims

Next, although it is not clear whether Plaintiff actually intended to assert a claim for

fraud, the Court notes that he has not adequately pled such a claim. At the threshold, allegations

of fraud must be pled with particularity. See Fed. R. Civ. P. 9(b) (“[A] party must state with

particularity the circumstances constituting fraud”). Filled as it is with generalizations and

conclusory allegations of wrongdoing, Plaintiff’s Amended Complaint does not satisfy this

heightened pleading standard.

9 In his Opposition to Defendants’ Motion to Dismiss, Plaintiff states (in passing) that Defendants owed him a fiduciary duty. See Pl.’s Opp’n at 6. Plaintiff—who appears to have had an arm’s length business relationship with the Defendants—has not alleged any facts that would support the claim that such a duty was owed. See Haynes v. Navy Fed. Credit Union,

(D.D.C. 2014) (holding that an “arm’s length business relationship” with a home mortgage lender did not give rise to a fiduciary duty). 9 Plaintiff’s fraud claim is fundamentally flawed for additional reasons. Assuming that

claim was based on the allegedly false statement that Defendants would process Ms. Damtie’s

HAMP application within 45-60 days, the claim fails because it is time-barred. As with

Plaintiff’s contract claim, his fraud claim would be subject to a three year statute of limitations.

See Hawkins v. Greenfield,

(D.D.C. 1992). Plaintiff did not file suit within

three years of the accrual of a claim based on this statement.

Plaintiff cannot state a fraud claim based on the other allegedly false statements

mentioned in his Amended Complaint (or opposition brief) because he does not allege that he

relied on those statements. “Under D.C. law, ‘[t]he essential elements of common law fraud are:

(1) a false representation (2) in reference to material fact, (3) made with knowledge of its falsity,

(4) with the intent to deceive, and (5) action is taken in reliance upon the representation.’” Busby

v. Capital One, N.A.,

(D.D.C. 2011) (quoting Fort Lincoln Civic Ass’n,

Inc. v. Fort Lincoln New Town Corp.,

, 1074 n.22 (D.C. 2008)). As noted above,

Plaintiff alleges that “[i]n the Superior Court of the District of Columbia in July 2016 during a

hearing, the defendant’s representative made a false statement regarding the Plaintiff,” and “[i]n

August 2016, a complaint was lodged by the borrower against the Defendant to the Consumer

Financial Protection Bureau (CFPB) . . . [and] the Defendant provided false information to the

CFPB stating that the Defendant was ‘unable to reach the Plaintiff’” despite the fact that

Defendants had allegedly actually spoken with Plaintiff. Am. Compl. ¶¶ 42-43. Additionally, a

Wells Fargo representative allegedly made a false statement about Plaintiff to Ms. Damtie in

March 2017. See Pl.’s Opp’n, Ex. E. Plaintiff does not allege that he relied on any of these

statements. Quite the opposite—he seems to have known that these statements were (allegedly)

10 false from the outset. 10 Reliance is a fundamental element of any fraud claim. Because that

element is missing here, Plaintiff cannot state a claim for fraud based on these statements. See

Malek v. Flagstar Bank,

(D.D.C. 2014) (dismissing fraud claim for failure

to plead the “critical element” of “reasonable reliance to [plaintiff’s] detriment on the

defendant’s conduct.”).

Accordingly, Plaintiff’s fraud claims are dismissed. The dismissal will be without

prejudice to the extent that it is based on Plaintiff’s failure to plead with particularity. However,

if Plaintiff were to seek to reassert a fraud claim with the sort of particularity required by Federal

Rule 9(b), he may do so only if he can allege a claim based on statements that he relied upon,

that are not barred by the statute of limitations, and that are otherwise cognizable. None of the

statements currently alleged in the Amended Complaint (or opposition brief) satisfy these

requirements.

D. Statutory Claims

Plaintiff’s Amended Complaint and his Opposition to Defendants’ Motion to Dismiss

contain references to various statutes. None of these statutes can support any actionable claim in

this case. To the extent Plaintiff is asserting a claim under the D.C. Consumer Protection

Procedures Act (“CPPA”), this claim fails for lack of a consumer-merchant relationship. 11 The

CPPA “prohibits merchants from making material misrepresentations to consumers.” Busby v.

10 In his Opposition to Defendants’ Motion to Dismiss, Plaintiff attempts to demonstrate reliance by arguing that Ms. Damtie relied on Wells Fargo’s statements. Pl.’s Opp’n at 11. This attempt fails, because Ms. Damtie is not the plaintiff in this case. 11 To the extent Plaintiff intended to pursue a CPPA claim based on the allegedly false statement that Defendants would process Ms. Damtie’s HAMP application within 45-60 days, that claim would also fail because it is time-barred. Courts apply a three year statute of limitations to CPPA claims, see Bradford v. George Washington Univ.,

(D.D.C. 2017), and, as described above with respect to Plaintiff’s contract and fraud claims, Plaintiff’s claim was not filed within this period.

11 Capital One, N.A.,

(D.D.C. 2013). The law “applies only to consumer-

merchant relationships.” Busby,

. It “does not reach transactions intended

primarily to promote business or professional interests.” Shaw v. Marriott Int’l, Inc.,

(D.C. Cir. 2010). Plaintiff has not alleged a consumer-merchant relationship in this

case. Plaintiff was not a Wells Fargo customer or borrower. Plaintiff was hired as a professional

consultant to help a non-party complete a HAMP application that she submitted to Defendants.

Defendants allegedly harmed Plaintiff while Plaintiff was working on that non-party’s behalf in

his professional capacity. Under no plausible set of facts could this be construed as a “consumer-

merchant relationship.” The relationship between Plaintiff and Defendants, to the extent one

existed, was a business or professional relationship. Accordingly, Plaintiff cannot state a claim

under the CPPA. See Busby,

(dismissing CPPA claim for lack of

consumer-merchant relationship); Busby,

(same).

Plaintiff references various other statutes in his Amended Complaint, but they also do not

provide him with an actionable claim. To the extent Plaintiff is attempting to assert a claim

under the Federal Trade Commission Act (“FTC Act”), that claim fails because the FTC Act does

not provide for a private cause of action. “The FTC Act is enforced exclusively by the FTC;

there is no private right of action under the statute.” United States v. Philip Morris Inc.,

(D.D.C. 2003) (citing Holloway v. Bristol-Myers Corp.,

(D.C.

Cir. 1973)). Similarly, to the extent Plaintiff is asserting a claim under HAMP itself, such a

claim would fail because HAMP also does not provide for a private cause of action. See Leake v.

Prensky,

(D.D.C. 2011) (holding that HAMP does not provide a private

12 cause of action and citing numerous cases). 12 Accordingly, Plaintiff cannot state a claim under

any of the statutes referenced in his pleadings. Those claims, to the extent Plaintiff intended to

assert them, are dismissed with prejudice.

E. Defamation and Interference with Business Relations Claims

Finally, Plaintiff alleges that Defendants defamed him (and therefore also interfered with

his business relations), by making various false statements about his representation of Ms.

Damtie. The Court will grant-in-part and deny-in-part Defendants’ Motion to Dismiss these

claims. The Court will grant Defendants’ motion and dismiss these claims to the extent that they

are based on the statements identified in paragraphs 41 through 45 of the Amended Complaint,

which have already been discussed multiple times in this Memorandum Opinion. Again, those

statements are: “In the Superior Court of the District of Columbia in July 2016 during a hearing,

the defendant’s representative made a false statement regarding the Plaintiff,” and “In August

2016, a complaint was lodged by the borrower against the Defendant to the Consumer Financial

Protection Bureau (CFPB) . . . [and] the Defendant provided false information to the CFPB

stating that the Defendant was ‘unable to reach the Plaintiff’” despite the fact that Defendants

had allegedly spoken with Plaintiff. Am. Compl. ¶¶ 42-43.

The statute of limitations for defamation in the District of Columbia is one year. See Jin

v. Ministry of State Sec.,

(D.D.C. 2003) (citing

(4)).

These statements were made no later than August 2016, more than a year before this case was

12 Defendants’ Motion to Dismiss contains an argument that Ms.’ Damtie’s termination of Plaintiff without compensation is not actionable. Defs.’ Mot. at 13-14. This argument appears to attack a claim Plaintiff is not making. The Court does not understand Plaintiff to be suing Defendants for non-party Ms. Damtie’s termination of Plaintiff. Plaintiff appears to concede that the law allowed Ms. Damtie to not pay him. Am. Compl. ¶ 29.

13 filed in November 2017. Plaintiff’s defamation claims based on these statements are accordingly

time-barred and therefore dismissed with prejudice. 13 Also time-barred is any interference with

business relations claim based on these same allegedly false statements. Because that claim

would be based entirely on the same set of underlying facts as Plaintiff’s defamation claim, it is

also subject to the one-year statute of limitations for defamation claims. See Browning v.

Clinton,

(D.C. Cir. 2002) (holding that when a tortious interference claim is

based solely on allegedly defamatory remarks, it is “intertwined” with plaintiff’s defamation

claim and therefore subject to the same one-year statute of limitations).

However, in his Opposition to Defendants’ Motion to Dismiss, Plaintiff has indicated that

Defendants also made false and defamatory statements about him to Ms. Damtie in March 2017.

Pl.’s Opp’n at 10. Plaintiff has attached to his Opposition what purports to be a letter from Ms.

Damtie to Plaintiff indicating as much. See

Ex. E. Specifically, Ms. Damtie writes that in

her “conversation with [a] Wells Fargo customer service representative on March 28, 2017, I

have been informed that they have been trying to get in touch with you on multiple occasions

and they are unable to reach you.”

She continues on to explain that Wells Fargo indicated

that this inability to reach Plaintiff was part of the reason why Ms. Damtie’s HAMP application

had not been granted.

Plaintiff claims that this statement was false and defamed him to his

then-client. Because Plaintiff is representing himself pro se, the Court considers these

allegations despite their absence from Plaintiff’s Amended Complaint. See Brown,

; Fillmore,

. This alleged statement was made less than a year before the

13 Even if Plaintiff’s claim with respect to the July 2016 statement was not time-barred, that statement—which apparently took place in a hearing before the Superior Court for the District of Columbia—would likely be protected by the judicial proceedings privilege.

14 filing of Plaintiff’s lawsuit. A defamation or interference with business relations claim based on

this statement is accordingly not time-barred.

Other than arguing that the Court should ignore the March 2017 statement altogether

because it was not alleged in Plaintiff’s Amended Complaint—a contention that the Court has

already rejected—Defendants argue that a defamation claim based on the March 2017 statement

is barred by the “single publication rule.” Defendants misinterpret that rule. Under the single

publication rule, “publication of defamatory matter ‘gives rise to but one cause of action for

libel, which accrues at the time of the original publication.’” Jin,

(quoting

Ogden v. Ass’n of the United States Army,

(D.D.C. 1959)). “Because

the statute of limitations runs from the date of the original publication, any subsequent sale or

delivery of a copy of the publication does not create a new cause of action.”

In other words,

“for purposes of the statute of limitations in defamation claims, a book, magazine, or newspaper

has one publication date, the date on which it is first generally available to the public.” Mullin v.

Washington Free Weekly, Inc.,

, 298 n.2 (D.C. 2001).

The single publication rule does not bar a defamation (or interference with business

relations) claim based on the alleged statement by Wells Fargo to Ms. Damtie in March 2017.

Unlike cases where the single publication rule applies, this is not a case where Defendants

originally published a statement and that statement was then distributed by another. Instead, this

is a case where (allegedly) multiple representatives of Defendants made similar but separate

statements about Plaintiff over a period of time that were each allegedly false and defamatory.

Under these circumstances, “[t]t is the general rule that each communication of the same

defamatory matter by the same defamer, whether to a new person or to the same person, is a

15 separate and distinct publication, for which a separate cause of action arises.” Restatement

(Second) of Torts § 577A (1977). 14

Accordingly, Plaintiff’s lawsuit is not dismissed to the narrow extent that it is based on

Plaintiff’s claim that Defendants made false and defamatory statements about him to Ms. Damtie

in March 2017.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS-IN-PART and DENIES-IN-PART

Defendants’ Motion to Dismiss the Amended Complaint. Plaintiff’s contract claims, statutory

claims and defamation claims based on statements that occurred in 2016 (and related interference

with business relations claims) are dismissed with prejudice. Plaintiff’s fraud claim is dismissed

without prejudice. Plaintiff shall file a Second Amended Complaint that sets forth Plaintiff’s

defamation and interference with business relations claim based on the statement allegedly made

by Defendants in March of 2017 and omits claims that the Court has dismissed with prejudice.

An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

14 In their reply brief, Defendants argue that “neither the Plaintiff’s Amended Complaint, nor his Opposition, makes any allegation of wrongdoing by WFC [Wells Fargo & Company]. Instead all of his allegations are directed at WFB [Wells Fargo Bank, N.A.].” Defs.’ Reply at 2. Accordingly, Defendants move for the dismissal of all claims against WFC. Id. As an initial matter, although Defendants claim that this argument was raised in their Memorandum in Support of the Motion to Dismiss the Amended Complaint, the Court has reviewed that Memorandum and is unable to find mention of this argument. Regardless, the one narrow claim that the Court has allowed to remain in this case is based on a statement allegedly made by “Wells Fargo customer service,” and it is not clear at this point whether that statement was made on behalf of WFC or WFB. Both Defendants shall remain in the case.

16